Context

Justice M. Nagaprasanna of the Karnataka High Court on March 23, 2022, in the case of Hrishikesh Sahoo vs State of Karnataka, pronounced the end of the marital rape exception.

Background of the case

• This judgment was a result of a unique case where a woman had filed a criminal complaint of rape against her husband due to the repeated acts of sexual assault she had to face.
• Marital rape exception to Section 375: The police registered her complaint under Section 376 notwithstanding the marital rape exception, a charge sheet was filed and the Sessions Judge took cognisance and framed charges under Section 376.
• This led to the husband approaching the High Court seeking to quash the criminal proceedings.
• In a nuanced and far-reaching judgment, Justice Nagaprasanna refused to quash the charge of rape against the husband.

Violation of rights of woman

• Violation of the right to equality: Justice Nagaprasanna held that if a man, being a husband is exempted for his acts of sexual assault, it would destroy women’s right to equality, which is the very soul of the Constitution.
• Discrimination: He held that the Constitution recognises and grants equal status to women, but the exception to marital rape in the IPC amounts to discrimination because a wife is treated as subordinate to the husband.
• The Constitution considers marriage as an association of equals and does not in any sense depict women to be subordinate to men and guarantees women the fundamental rights under Articles 14, 15, 19 and 21 the right to live with dignity, personal liberty, bodily integrity, sexual autonomy, right to reproductive choices, right to privacy, right to freedom of speech and expression.
• n Independent Thought vs Union of India (2017), the Supreme Court of India diluted it and removed the exception to marital rape to a wife not below 15 years and made it 18 years.

Historical roots of the principle of exception

• The exception to marital rape in common law was due to the dictum by Chief Justice Matthew Hale of Britain in 1736 where he argued that by marriage, a woman gave up her body to the husband and was accepted as an enduring principle of common law, due to which a husband could not be guilty of raping his wife.
• This was therefore translated into criminal codes, including the Indian Penal Code which India adopted.
• This principle has now been completely abolished.
• In the United Kingdom, in 1991, the exception to marital rape was done away with in the case of R. vs R. The House of Lords held that where the common law rule no longer represents what is the true position of a wife in present-day society.
• The court held that a husband’s immunity as expounded by Chief Justice Matthew Hale no longer exists.

Conclusion

The Karnataka High Court, by holding that the exception to marital rape in Section 375 is regressive and in violation of the constitutional guarantee of equality, has now truly pronounced the death knell of the marital rape exception.

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